- Eesha Shrotriya and Shantanu Pachauri*
Talaq-e-biddat has been a source of severe oppression and injustice for Muslim women. The practice results in the unilateral breakdown of a marriage at the whim of the husband. The judicial trend has evolved against the practice since the courts have, at several occasions, declared the practice to be unacceptable with certain qualifications. In Shayara Bano v. Union of India, the Supreme Court conclusively struck down this practice. Subsequently, the Parliament came up with the Muslim Women (Protection of Rights on Marriage) Bill, 2017 which declared the practice as void and illegal. The Bill also makes the practice a non-bailable and cognizable offence, and provides imprisonment of three years for the same. The authors critically examine the Bill and conclude that criminalising an act of private nature would have adverse repercussions on the institution of marriage. Although the Bill might prohibit triple talaq, it seems highly improbable that it would effectively achieve its objective of protecting the rights of married Muslim women at the same time. The authors suggest an alternative scheme which would achieve the objective of the Bill while overcoming its limitations.
Marriage under Muslim law is not only a contract but also a sacred covenant. It is an institution which has maintained its sanctity since the earliest time as it is an act of ibadat (worship) or piety. The power of divorce is natural corollary to the marital right. Since marriage is considered to be sacred, its breakdown is considered to be socially unacceptable. Prophet Mohammad pronounced talaq (divorce by the husband at his will and without the intervention of court) to be the most detestable before God of all permitted things.
The talaq-e-biddat or instantaneous and irrevocable divorce (‘triple talaq’) is one of the modes under the Muslim law through which a marriage is dissolved. It is pronounced by a declaration of talaq repeated three times at short intervals or even in immediate succession. There is no requirement of special expressions to constitute a valid talaq except that the words used must clearly indicate the intention of the husband to dissolve the marriage. If such repudiation was made during the tuhr (period between menstruations) of the wife and the husband had no intercourse with her during that period, it becomes complete and irrevocable immediately.
Triple talaq has always been a source of severe injustice to the Muslim women primarily because of its instantaneous and irrevocable nature. This controversy gained more heat after the Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2017 (‘the Bill’) declaring the practice as void and making it a punishable offence. As the Bill proposed that the mere pronouncement of triple talaq would be a cognizable and non-bailable offence, it was met with widespread opposition on the ground that there would be a possibility of its misuse. Curtailing the liberty of a person by imprisoning him for the such pronouncement raises important issues of criminal and constitutional law. Thus, it becomes imperative to deliberate upon these issues.
This paper examines the provisions of the amended Bill which are same as that of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 (‘the Ordinance’). However, it does not delve into the procedure followed to bring about the Ordinance. No attempts have been made to examine the validity of the practice of triple talaq either. Part II gives a brief judicial and legislative background. Part III analyses whether criminalisation of triple talaq constitutes valid interference with privacy. Finally, in Part IV, the authors suggest an alternative scheme before concluding in Part V.
In August, 2017, the Supreme Court in Shayara Bano v. Union of India (‘Shayara Bano’), for the first time, set aside triple talaq as a manifestly arbitrary practice. The Court held it not to be an ‘essential religious practice’ under Article 25 of the Constitution of India (‘the Constitution’). However, even prior to this judgment, several High Courts had adopted a critical approach towards the practice. In Jiauddin Ahmed v. Anwara Begum,  the Gauhati High Court analysed the concept of talaq under Muslim law and concluded that it does not allow instantaneous and irrevocable triple talaq. The Court also stated that the correct law of talaq as ordained by the Holy Quran is that it must be for a reasonable cause and be preceded by attempts at reconciliation. This position was reiterated by the Court in Rukia Khatun v. Abdul Khalique Laskar. In Nazeer v. Shemeema, the Kerala High Court reached the conclusion that triple talaq in one utterance is not valid according to Quranic injunction.
In Shayara Bano, the minority view was that triple talaq is a valid form of divorce under Muslim law and the right to follow personal law is an integral part of freedom of religion. But, if Parliament so wants, it may enact a law on it. It was felt that the setting aside of triple talaq by the Supreme Court has not worked as an effective deterrent in bringing down the number of such divorces. There was an urgent need for State action in the form of a suitable legislation, to give effect to the order of the Supreme Court. Subsequently, the Lok Sabha passed the Bill, declaring the practice as void and making it a punishable offence. The Bill was met with widespread opposition. To address this, the Union Cabinet approved three amendments to the Bill to provide safeguards. During its pendency in the Rajya Sabha, the President approved the Ordinance to overcome ‘overpowering urgency’ and ‘compelling necessity’ to discontinue the practice.
III. Criminalisation of Triple Talaq: Gender Justice or Invasion of Privacy?
Although the Bill aims to achieve gender justice, it adopts the means of criminalisation of pronouncement of triple talaq to do so. Such criminalisation would quite probably infringe the privacy of the married couple. In Justice K. S. Puttaswamy (Retd.) v. Union of India,  the Supreme Court held that the privacy is a fundamental right under right to life and personal liberty enshrined in Article 21 of the Constitution. It was held that an invasion of privacy by the State can only be justified if such invasion satisfies a three-fold requirement which applies to all restraints on privacy: Firstly, the requirement of legality which postulates that there must be a law in existence to justify an encroachment on privacy as no person can be deprived of his life and personal liberty except in accordance with the procedure established by law. Secondly, the requirement of a need, in terms of a legitimate State aim to ensure that the law is reasonable and not arbitrary. Thirdly, the requirement of proportionality which postulates that the means adopted are proportional to the object sought to be fulfilled. As the criminalisation of the pronouncement of triple talaq is proposed to be done through a legislation, the requirement of legality is satisfied. The other two requirements are discussed below:
A. Requirement of a legitimate State aim
The pursuit of a legitimate State aim ensures that the law does not suffer from manifest arbitrariness. The nature and content of the law which imposes the restriction must fall within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary State action. Arbitrary means: “in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded on the nature of things, non-rational, not done according to reason or judgment, depending on the will alone.” The Bill provides that any pronouncement of triple talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner, shall be a punishable offence. This provision fails to meet the requirement of a legitimate State aim of reasonableness because of the following reasons:
1. Criminal consequences for a civil wrong
The criminalisation of the pronouncement of triple talaq would be inappropriate. There are certain cases where a wrongful act should not be classified as a criminal offence. Jeremy Bentham, whose work is an authoritative and reliable source for understanding the principles of criminal jurisprudence has enumerated such cases in his book ‘An Introduction to the Principles of Morals and Legislation’:
Firstly, where it is groundless i.e. where there is no mischief for it to prevent since the act is not mischievous. For an unlawful act to constitute a crime, it should entail some external harmful consequences, thus constituting actus reus (criminal act). There must be a causal relationship between the voluntary misconduct and the resulting harm. After Shayara Bano, pronouncement of triple talaq has lost its legal validity and power to dissolve a Muslim marriage. Mere pronouncement of triple talaq, unaccompanied by any other act is inconsequential as it does not dissolve the marriage and in no way adversely affects either the wife or the society. She remains a legally wedded wife as her status is not altered. Thus, prima facie there is no mischief. However, in the offence of bigamy too, a person is punished for solemnising a valid second marriage, even though this marriage is void and inconsequential. Thus, an inconsequential act can be classified as a criminal offence. Criminalisation of the pronouncement of triple talaq cannot be said to be groundless.
Secondly, where it is inefficacious i.e. it cannot prevent the mischief. The punishment is not justified if it does not prevent the offender from engaging in a wrongful act. The imprisonment of the husband for pronouncement of triple talaq would aggravate the marital discord and diminish the chances of reconciliation. This would discourage the wife from reporting such incidents which would reduce the deterrent effect.
Thirdly, where it is unprofitable or too expensive i.e. the mischief it would produce would be greater than what it prevented. The criminalisation of the pronouncement of triple talaq may only prevent an inconsequential act. Additionally, there is a low probability of such prevention because of the reduced deterrent effect. On the other hand, it would produce the mischief of irreparable marital discord. It has been observed that an accusation of one spouse by the other intensifies spousal conflict which leads to failure of marriage. Flavia Agnes while criticising the Bill has opined that once the husband undergoes imprisonment, it would be unreasonable to expect any reconciliation between the spouses as the enraged husband may well resort to the approved Quranic form of pronouncing triple talaq over a three-month period. The objective of protecting the rights of the aggrieved wife will not be achieved as imprisoning the husband would reduce the possibility of reconciliation. Thus, criminalisation would lead to the breakdown of the very institution it seeks to protect. It would also produce the mischief of misuse of the provision providing for punishment for such pronouncement. Similar provisions like Section 498A of the Indian Penal Code (‘the IPC’) and the provisions under the Dowry Prohibition Act, 1961 (‘the DP Act’) have been misused.
Lastly, where it is needless i.e. the mischief may be addressed at a cheaper rate. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State. As Muslim marriages are contractual in nature, civil remedies are sufficient to deal with any dispute arising out of them. The use of the State machinery to imprison a person for a period of three years is not justified when the issue can be addressed through cheaper alternative means. Such means may include civil remedies in the form of adequate compensation and specially devised mechanisms like alternate dispute resolution methods. This scheme of providing civil remedies as opposed to criminal sanctions has been followed in various statutes in pari materia including the Protection of Women from Domestic Violence Act, 2005 (‘the DV Act’) and Section 125 of the Code of Criminal Procedure. The practice has also been banned in Muslim-dominated countries including Turkey, Cyprus, Tunisia, Algeria, Malaysia, Jordon, Egypt, Iran, Iraq, Brunei, the United Arab Emirates, Indonesia, Libya, Sudan, Lebanon, Saudi Arabia, Morocco, and Kuwait. In most of these countries, proceedings related to the pronouncement of triple talaq takes place in civil courts providing civil remedies. Various mechanisms are prescribed to facilitate reconciliation, such as consultation with an arbitrator or religious heads.
Thus, the pronouncement of triple talaq should not be categorised as a criminal offence. Even Hanafi school of Shariat law which although recognises this form of talaq, regards it to be a mere sin and bad in theology. Also, no court, including the Supreme Court has ever considered it as a crime. Even while striking down the practice in Shayara Bano, the Court did not suggest making it a criminal offence.
One of the reasons provided for criminalisation of the pronouncement was the absence of any deterrent effect of the decision in Shayara Bano. It has been held that the State must adopt a minimalist approach in criminalisation of offences because a stronger justification is required where an offence is made punishable with imprisonment. The abovementioned reason is not strong enough to justify putting a person behind bars as it is not appropriate to conclude the absence of deterrent effect of the judgement, within a period as short as four months.
2. Absence of mens rea
The Bill penalises any pronouncement of triple talaq by a Muslim husband upon his wife. As no mental element has been prescribed expressly or by implication, it may be interpreted to include even those pronouncements which are made without the intention of divorcing the wife. The general principle of criminal jurisprudence is that element of mens rea must accompany the culpable act of the accused. A criminal offence is committed only when an act forbidden by law is done voluntarily and not if the mind of the person doing the act is innocent. According to Jeremy Bentham, a wrongful act done without mens rea should not be made a criminal offence. However, there is a class of offences, generally known as strict liability offences, which does not depend on any mental element but consists of forbidden acts or omissions. It is sufficient to prove the doing of the prohibited act and any defence of ignorance, mistake, or reasonable care is excluded.
These strict liability offences may be classified into three categories: First, acts that are not criminal in any real sense but are of a quasi-criminal nature and are prohibited in public interest under a penalty. For example, environment pollution, special social and economic offences, offences relating to foods and drugs, etc. Quasi-criminal nature means relating to or having the character of crime. It includes every species of cases which are regarded by the law as a crime, although a little different. As already discussed, the pronouncement of triple talaq should not be regarded as a crime. It cannot be regarded as quasi-criminal in nature either as it does not have the character of crime. It is more in the nature of a civil wrong, and thus, would not fall under the first category. Second, cases of public nuisance, libel, and contempt of court, etc. Third, cases in which although the proceeding is criminal, it is really a mode of enforcing a civil right. For example, cases of violations of municipal laws and regulations, etc. Such offences typically involve only lenient penalties. Strict liability in penal law is indefensible if a conviction results in the possibility of imprisonment and condemnation. Strict criminal liability without some form of mens rea deprives the accused of liberty without due process under constitutional guarantees. As the offence of pronouncement of triple talaq does not fall under any of the above categories, making it a strict liability offence punishable with imprisonment upto three years would be unjustified.
Thus, the criminalisation of mere pronouncement of triple talaq without adequate determining principle is arbitrary and unreasonable under Article 14 of the Constitution.
B. Requirement of proportionality
The requirement of proportionality ensures a rational nexus between the objects and the means adopted to achieve them. Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of encroachment on the right is not disproportionate to the purpose of law. A punishment should always be proportionate to the crime. The principle of proportion between crime and punishment is a principle of ‘just deserts’, which serves as the foundation of every criminal sentence that is justifiable.
The pronouncement of triple talaq has been made an offence punishable with imprisonment which may extend to three years along with a fine. Mere pronouncement of triple talaq is similar to ‘domestic violence’ under the DV Act. It includes harm or injury to mental well-being and ‘verbal and emotional abuse’. The word ‘abuse’ has a very wide meaning. Everything which is contrary to good order established by usage amounts to abuse. ‘Verbal and emotional abuse’ includes insulting, ridiculing, humiliating, intimidating a woman for depriving her of the benefits of shared household, etc. It is pertinent to note that ‘verbal and emotional abuse’ along with other types of domestic violence have various civil remedies instead of penal consequences. The DV Act prescribes imprisonment upto one year only when an order providing such civil remedies by the Magistrate is breached. Putting the husband behind bars for upto three years would be inconsistent with the scheme followed in the Act. Thus, the above penalty is excessive and disproportionate. Moreover, such a stringent punishment has been prescribed for much graver offences like sedition, promoting enmity between classes of people, rioting armed with deadly weapon, etc. It has been held that the penalty imposed must be commensurate with the gravity of the misconduct and any excessive and disproportionate penalty would be manifestly arbitrary and violative of Article 14. Consequently, such an unreasonable and disproportionate penalty is arbitrary and contravenes Article 14 of the Constitution.
Additionally, the offence of pronouncement of triple talaq has been made cognizable if information relating to the commission of the offence is given to an officer-in-charge of a police station by the wife or any person related to her by blood or marriage. It would mean that upon receipt of a complaint, the husband would be arrested without a warrant and without conducting any preliminary inquiry. Various offences dealing with similar subject matter like cruelty and taking or giving dowry are cognizable, which often leads to their misuse. To prevent such misuse, certain safeguards need to be incorporated in the Bill, the absence of which would make the procedure under the Bill unfair and unreasonable.
The Supreme Court in Shayara Bano and the Parliament through this Bill made the pronouncement of triple talaq void and illegal. The aim was unaffected subsistence of marriage, thus protecting the rights of Muslim women. However, classifying the pronouncement of triple talaq as a cognizable offence punishable with imprisonment of upto three years would in effect cause irreparable harm to the marriage. The means adopted by the Bill would themselves defeat the very object that it seeks to achieve, which indicates that there is no rational nexus between the two. Therefore, criminalisation of mere pronouncement of triple talaq, which is not accompanied by any other act fails to meet the requirement of proportionality.
As criminalisation of pronouncement of triple talaq fails to meet the requisite conditions, invasion of privacy by the State through criminal sanction cannot be justified. Interference by the State would be justified if it employs civil means to achieve the objective of prohibition of triple talaq as this would fulfil the necessary requirements.
IV. Suggested Scheme
The proposed Bill suffers from grave inconsistencies which can be overcome through an alternative scheme which is suggested below:
Pronouncement of triple talaq should be declared ‘void and illegal’. It would have no legal effect on the status of husband and wife. The Magistrate on the application of wife may ask the husband to compensate the wife for the mental agony caused to her. The Magistrate may decide the quantum of the compensation and the time period within which it is to be paid. Mere pronouncement of triple talaq would not entail any penal consequences.
If the husband breaches the order of the Magistrate and fails to pay the compensation as prescribed, he should be liable for a penalty for such breach in the form of imprisonment for a term which may extend to one year, along with fine. This is in consonance with the scheme followed under the DV Act.
Although mere pronouncement of triple talaq would not have any legal effect, if the husband or any other person enforces or attempts to enforce such pronouncement, he or she should be punished with imprisonment for a term which may extend to one year along with fine.
If the husband pays the requisite compensation and does not enforce or attempt to enforce such pronouncement, he should not be liable for any of the aforementioned punishments.
It is pertinent to note that as long as the practice of polygamy subsists, the husband will always have the option to get married again even if his pronouncement has no value in the eyes of law. This would render the objective of protecting the rights of Muslim women ineffective. It is suggested that the legislature should incorporate civil safeguards against the practice of polygamy to avoid this situation.
The pronouncement of triple talaq should be expressly included in the definition of ‘domestic violence’ in the DV Act. It would ensure that the wife can approach the court for exhaustive remedies under the said Act in addition to the remedies in the abovementioned scheme.
The approach of Indian judiciary towards triple talaq has always been critical. However, there was an urgent need for incorporating this approach in the letter of the law. The Muslim Women (Protection of Rights on Marriage) Bill, 2017 is a step forward in this direction. The Bill intends to achieve justice for Muslim women and prevent the incessant harassment caused by this practice.
The Bill, in its present form, criminalises the pronouncement of triple talaq, apart from declaring the practice as void and illegal. It seems highly unlikely that it would be successful in achieving its two-fold objective of prohibition of the practice of triple talaq and protection of rights of Muslim women. The first part of the Bill which declares the practice of triple talaq as void and illegal is in consonance with the ruling of the Supreme Court in Shayara Bano. However, the provisions which penalise the practice with a stringent punishment are likely to be counterproductive as they would discourage reporting of such incidents and diminish the chances of reconciliation. Additionally, the Court in Shayara Bano never suggested the criminalisation of pronouncement of triple talaq. The State is likely to intrude into the private sphere of its citizens through criminal sanctions for such a practice.
Thus, to achieve the two-fold objective of the Bill, the suggested scheme should be taken into consideration. Consultations should be made with the Muslim community and legal scholars before the Bill is passed, to make it more effective. Once the Bill is passed, there is a need to spread awareness about the effect of the Bill so that it is successful in achieving its objective.
*Eesha Shrotriya and Shantanu Pachauri are 5th Year, B.A., LL.B. (Hons.) students at the National Law Institute University, Bhopal. We would like to thank our professors, Dr. Debashri Sarkar and Dr. V.K. Dixit for their valuable suggestions which helped us in gaining a novel perspective on the issue. We are also grateful to our friends, Mr. Arpit Shivhare, Mr. Prabal De, Ms. Rohini Dayalan and Mr. Udyan Arya for their feedback on the first draft of the article. We are also indebted to the editorial team of SLR, particularly Ms. Megha Mehta for her continuous efforts to make the article better.
 Ameer Ali, Commentaries on Mahommedan Law 1288 (5 ed. 2005).
 Id. at 1287.
 Id. at 1551.
 M. Hidayatullah et. al, Mulla Principles of Mahomedan Law 258 (19 ed. 1990).
 Ali, supra note 1 at 1552; 2 Ibn Abidin, Radd al-Muhtar ala al-Dur al-Mukhtar 682 (1 ed. 2012).
 Mulla, supra note 4, at 261.
 Id. at 262.
 Sandeep Phukan, Lok Sabha passes triple talaq bill, The Hindu (Dec. 29, 2017), http://www.thehindu.com/news/national/lok-sabha-passes-the-triple-talaq-bill/article22319663.ece.
 Mohammed Wajihuddin, Criminalisation of triple talaq may be misused: Women's body, The Times of India (Nov. 24, 2017), https://timesofindia.indiatimes.com/city/mumbai/criminalisation-of-triple-talaq-may-be-misused-womens-body/articleshow/61775066.cms.
 Shayara Bano v. Union of India, (2017) 9 SCC 1 (India).
 Jiauddin Ahmed v. Anwara Begum, (1981) 1 GLR 358 (India).
 Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 GLR 375 (India).
 Nazeer v. Shemeema, 2017 (1) KLT 300.
 Shayara Bano v. Union of India, (2017) 9 SCC 1 (India).